Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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Well, boys and girls, get the pencils out again, it's time for some more SIMPLE ADDITION. Not heavy mathmatics, just simple addition. If you can count up to twelve, you can make the same determination that the trial judge will have to make, can't you? Like the situation a couple of chapters back, this "What went wrong with our case?" chapter directly relates to the chapter preceding. If you haven't read that chapter first, go back one chapter and read it.Chapter 27 We are looking at just our client's interview, the high point of our case. Usually the other side comes up with a few surprises, gets a few punches in, takes a few points. But this is our high-water mark, when everything seems to be going our way. Is it?
As you know, the court will hear the facts, and then the court must consider all of the following factors of the Michigan Child Custody Act:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
Let's assume that both of these people love their children, and let's assume that this one is going to be a tie. It very well might not, in that this "bastard", the father, gets right out there on the lawn and roughs it up with them, takes them to school all made up like zebras for Halloween, while he's also dressed up as a zebra. If the other side makes a big presentation over this, we might lose the factor, the point, but most judges will call this factor a tie, unless they hear some really compelling evidence. Think about it: most parents really love their children, and they spend what time they can with them. The children really love their parents, both of them, and the bonds are there. I'm sure you can imagine some cases where that might not be true, but I'm not going to burden you with it here. I'm trying to make the point that this factor is usually a tie, and that cases are won and lost, for the most part, on the other factors.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
Well, in this example, it appears that both parents have the capacity and disposition to provide love and affection, but our side runs into problems with "and guidance and continuation of the educating" of the children, doesn't it? Note that Mom doesn't go to the school, and dad does all the time. There was a discipline problem that dad took care of (and took the time to try to explain it to Mom), but Mom doesn't actually know any of the details, does she? Her school involvement is nil. Dad even picks the kids up from school, right? Expect the other side to win on this one.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this State in place of medical care, and other material needs.
This dad is a sure winner on this factor, isn't he? He buys the kids clothes ("meet us at Sears"), he pays extra on his support to avoid an emergency created by mom and her boyfriend, he doesn't even put in for his abatement, his one-half reduction in support when he has the kids for a week. He doesn't even complain that he's still paying child care money in addition to the support, when he's providing the child care. Our client, on the other hand, doesn't seem to do much with her money for those kids, does she? This factor is going to Father.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
Well, as I'm sure you noticed, Dad's environment is stable, he's always home ("typing away for hours on end"), in his new house ("well, it's not new now, they've been there for years") and Mom's environment is not stable. Three trailer parks in two years (with the change in school for the kids), the abusive boyfriend (the "new" boyfriend, not the old one). Any "desirability of maintaining continuity" here with Mom? The judge won't think so either.
(e) The permanence as a family unit, of the existing or proposed custodial home or homes.
It's almost, but not quite the same as the factor above. Dad has remarried, and is stable in his family unit, Mom obviously is not stable in her family unit (and we haven't even started with the violence, have we?). Factor goes to dad.
(f) The moral fitness of the parties involved.
Here's where we start counting boyfriends, as opposed to the fact that Dad has remarried and presumably settled down. Any convictions of a crime, bad checks? Anything to demonstrate moral misconduct? Judges tend to score a lot of ties on this factor as well. Too many paramours, though, especially if they move in, or you move in with them, and the judge will find immorality. Judge may also inquire as to the company you keep. "She's running with a bad crowd, why her best friend just went to jail for drug dealing" can be effective. In this case, it's likely a tie. There is some small chance that the factor will go to Dad, but not much. We've only heard about two boyfriends, right?
(g) The mental and physical health of the parties involved.
Both parties appear healthy, in both respects. Surely a tie. End of discussion.
(h) The home, school, and community record of the child.
The judge will want to know "How are these children doing, when they're with Mom?", and "is it different when they're with Dad?" It's very likely that these kids do better when they're with dad, because he's the one involved, and our client is not, is she? The best we can hope for here is a tie on this factor, and we just might lose it.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
Do the children have a preference? It will be very interesting to see what it is.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
Brace yourself: we are positively going to get killed on this factor aren't we? Our client is playing games with the money, calling the father names in front of the kids, demanding money, etc, and the chickens are going to come home to roost. Right now, in this factor. Contrast that with Dad's behavior, and it's night and day. Open and shut. Dad wins it, period.
(k) Domestic violence, regardless of whether the violence was directed against, or witnessed by the child.
We lose again. No mention of any violence over at Dad's house, and Mom is trying to get her boyfriend sentenced to jail. Again.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
This is where the judge is going to pass out brownie points to dad. This guy (the dad, not the judge) has been an absolute prince of a guy, he picks up the kids from school, he's never late dropping them off, and he didn't even put in for his support reductions. You can even make the argument that we really already have a joint physical, or a split custody arrangement in place, that's been in place for years, but this wonderful guy, Dad, just didn't go to court over it, to get it formalized. That argument might win, too. Notice, if you will, that there is an excellent chance that Dad knew what he was doing all along, when he passed out the extra money, when he offered to do the babysitting, and kept paying the child care money, that he was always considerate of Mom's schedule, and kept the kids when she had to work, and not a peep out of him about money. Money is not a factor in this custody case, at least on Dad's part, and he can prove it. He's going to take the stand, and say something like "Well, I really didn't want to do that, to file for custody. I had the kids most of the time anyway, and I would have just kept on paying the money, just so I got my kids, got to spend time with them." Notice, please, that he didn't do this for three months, and then pounce, having baited, and then sprung, some trap. No indeed. He actually lived with it for several years (even when she was holding the kids by the hand, demanding money, and swearing at him. He just started carrying ten dollar bills, didn't he?), until the last series of events forced his hand. But he was ready, wasn't he?
And while you're playing judge, adding up these factors in the custody statute, why not play lawyer for a moment? Can you answer the lady's final question? She said, right at the end of the interview:
"...So anyway, this thing with him filing for custody, it's retaliation for me mentioning the support money. I want you to get his support raised while we're at it, can you do that at the same time? Since we're going to court anyway, I mean?"
Good luck with it.